The withholding of terminal benefits without initiation of departmental proceedings and issuance of a charge-sheet is without authority of law.

ORDER :

1. Rule returnable forthwith. Mr. Utkarsh Sharma, learned Assistant Government Pleader waives service of notice of Rule for the respondent Nos.1 and 2 as well as Mr. P.S. Gogia, learned counsel waives service of notice of Rule for respondent No.3 – Agriculture Produce Market Committee, Vadhvan.

2. The present petition has been filed by the petitioner who retired from the services of the APMC, Vadhvan with effect from 30.11.2020.

3. The facts in brief would indicate that the petitioner initially joined the APMC as a Clerk. He was then promoted to the post of Inspector. While he was posted as In-charge Secretary of the Committee from 19.01.2018, an audit was carried out by the Marketing Committee for the period from 1.4.2016 to 31.3.2020. This inquiry was under the provisions of Section 44 of the APMC Act, 1963. On superannuation, the petitioner requested the Committee that his terminal benefits be released. The response of the Committee by a letter dated 27.11.2020 indicates that since based on the report under Section 84 of the Committee constituted by the State, the terminal benefits of the petitioner cannot be released.

4. On his representation made, the petitioner was informed that due to pendency of the outcome of the report which was taken to be departmental inquiry against him, unless and until the APMC decides to release such benefits, the same cannot be released.

5. Mr. Champaneri, learned counsel for the petitioner would submit that in absence of any charge-sheet given to the petitioner, even at the relevant time when he retired, and now that more than two years have gone by and no charge-sheet is issued, the withholding of terminal benefits is without authority of law.

6. Mr. Gogia, learned counsel for the respondent – Committee would submit that based on the audit report that has been submitted on 5.10.2020 when it is prima facie found that due to certain irregularities of the Secretary, the petitioner, if and when certain amounts need to be recovered from the petitioner, the terminal benefits like gratuity etc. have not been paid. It has been conveyed to the petitioner that the same shall be paid subject to the report of the Director, Agriculture Market and Rural Economy, Gandhinagar. He would rely on Rule 31 of the APMC Rules which, according to the Committee empowers it to withhold terminal benefits.

7. Mr. Sharma, learned AGP for the respondent – State would submit that the regular inquiry was held under Section 44 of the APMC Act. The outcome of the Report is awaited and in the event, if it is found that it was as a result of the petitioner’s omissions that certain amounts need to be recovered as the affairs of the Committee are inquired into, if the terminal benefits are released, the State and the Committee will be remedy-less against the petitioner.

8. Considering the submissions and based on the affidavit-in-reply filed by the Committee, true it is that drawing the analogy from Rule 23 of the Gujarat Civil Services (Pension) Rules, 2002, good conduct is an implied condition for grant of pension, such pension can only be withheld if a pensionary is found guilty of misconduct by following the procedure as laid down under the Discipline and Appeal Rules for imposing a major penalty.

9. Facts on hand would indicate that the respondent – APMC has not followed the procedure under Rule 22 to 24 of the Rules which indicate that penalties can be imposed on an employee, as set out in Rule 23 after following the provisions of Rule 24 which indicates the issuance of a charge-sheet. Admittedly, that is not the case in the facts on hand, no chargesheet has been issued and the petitioner has been held liable for misconduct under this Rules.

10. Mr. Champaneri, learned counsel for the petitioner would rely on a decision dated 07.04.2022 in SCA No.7457 of 2020. Relevant portion of the decision reads as under :

“12. It appears that in the interregnum on 22.11.2019, two of the Directors addressed a letter to the petitioner quest